State of Iowa v. Kenneth Lee Lilly

• Court: Supreme Court of Iowa
• Decided: February 4, 2022
• Docket: 20-0617
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA

No. 20–0617

Submitted October 20, 2021—Filed February 4, 2022

STATE OF IOWA,

Appellee,

vs.

KENNETH LEE LILLY,

Appellant.

Appeal from the Iowa District Court for Lee (North) County, Mary Ann

Brown, Judge.

The defendant appeals the district court’s denial on remand of his motion

challenging the representativeness of the jury pool under the fair-cross-section-

requirements of the United States and Iowa Constitutions. AFFIRMED.

McDermott, J., delivered the opinion of the court, in which all justices

joined. Mansfield, J., filed a concurrence, in which Appel, J., joined. McDonald,

J., filed a concurrence, in which Christensen, C.J., and Waterman, J., joined.

Martha J. Lucey, State Appellate Defender, and Shellie L. Knipfer (argued),

Assistant Appellate Defender, for appellant. 2

Thomas J. Miller, Attorney General, and Louis S. Sloven (argued) and

Andrew Prosser, Assistant Attorneys General, for appellee.

David S. Walker, Windsor Heights, and Russell E. Lovell, II (argued), Des

Moines, for amicus curiae NAACP. 3

McDERMOTT, Justice.

A jury in North Lee County found Kenneth Lilly guilty of aiding and

abetting a bank robbery. Lilly, an African-American, appealed his conviction,

arguing that his right to an impartial jury under both the United States and Iowa

Constitutions had been violated because neither his jury nor even the jury panel

contained any African-Americans. On appeal, we remanded the case to give Lilly

an opportunity to develop his impartial-jury arguments in response to

refinements to how a defendant must prove a constitutional violation that we

explained in several cases after his trial. The district court ultimately rejected

Lilly’s further-developed claims. Lilly now appeals that ruling, arguing that the

district court erred in holding that he failed to prove a violation.

I. The Issue on Remand.

We described the underlying facts from Lilly’s trial and earlier procedural

history of this case in the opinion filed in Lilly’s initial appeal and will forego

restating them here. See State v. Lilly (Lilly I), 930 N.W.2d 293, 296–98 (Iowa

2019). Pertinent to this appeal are the facts that the parties developed on remand

related to the only remaining issue in the case: Lilly’s fair-cross-section claim.

In State v. Plain (Plain II), we defined the terms “jury pool” (the members of

the community selected for jury duty and summoned and reporting to the

courthouse), “jury panel” (the members of the pool directed to a particular

courtroom to serve as possible jurors for a specific trial), and “jury” (the members

of the panel actually selected for a specific trial), and will use the same definitions

in this case. ___ N.W.2d ___, ___ (Iowa 2022). 4

Evidence offered at Lilly’s hearing on remand showed that of the people

summoned who indicated their race on a summoned-juror questionnaire, one

person marked “Other,” one marked “American,” one marked “Asian,” one

marked “Japanese,” and one marked “White/Black.” Ultimately, none of the

potential jurors in Lilly’s pool were African-American, and (thus) none of the

members of Lilly’s jury were African-American. Lilly called only one witness at

the hearing, the jury manager for Lee County, who testified about how the jury

selection process worked in the county at the time of Lilly’s trial.

II. The Duren/Plain Elements.

The Sixth Amendment to the United States Constitution guarantees the

right to “an impartial jury of the state and district wherein the crime shall have

been committed.” U.S. Const. amend VI. The Iowa Constitution similarly

guarantees the right to a “trial by an impartial jury.” Iowa Const. art. I, § 10. The

constitutional guarantees of an impartial jury entitle the accused to a jury

“drawn from a fair cross-section of the community.” State v. Plain (Plain I),

898 N.W.2d 801, 821 (Iowa 2017).

A defendant establishes a prima facie violation of the fair-cross-section

requirement by showing that (1) a group alleged to have been excluded is a

“distinctive” group in the community, (2) the group’s representation in jury pools

is not “fair and reasonable” when considered against the group’s percentage in

the community, and (3) the group’s underrepresentation “is due to systematic

exclusion of the group in the jury-selection process.” Id. at 822 (quoting Duren

v. Missouri, 439 U.S. 357, 364 (1979)). The defendant bears the burden of proof 5

to show a prima facie violation of the fair-cross-section requirement. Plain I,

898 N.W.2d at 821–22; Lilly I, 930 N.W.2d at 299; see also Duren, 439 U.S. at

363–64.

The State concedes the first Duren/Plain prong and thus that African

Americans constitute a distinctive group in the community. The dispute centers

on the second and third prongs. The district court held that Lilly failed to prove

either one. We review challenges alleging the denial of constitutional rights—in

this case, the right to an impartial jury—de novo and thus evaluate the evidence

anew without deferring to the district court’s findings. Lilly I, 930 N.W.2d at 298.

III. Lilly’s Proof of Causation Under Duren/Plain’s Third Prong.

We will begin our analysis on the third prong, since an inability to establish

any one of the three Duren/Plain elements is fatal to a defendant’s fair-cross-

section challenge. In Lilly I, we explained that to establish the third prong a

defendant must prove that the underrepresentation resulted from a particular

feature (or features) of the jury selection system. Id. at 306. The defendant, in

other words, “must tie the disparity to a particular practice” and show that the

practice caused the systematic exclusion of the distinctive group in the jury

selection process. Id. at 307.

Lilly points to a single jury management practice to prove his claim of

African-American underrepresentation in jury pools. He targets the lists—voter

registration, driver’s license, and nonoperator identification—that are combined

to form the source list from which people are randomly selected for jury pools.

Lilly’s argument then proceeds with several factual propositions. He first asserts 6

that low-income people tend to register to vote and to acquire driver’s licenses

and nonoperator identification cards at a lower rate than other members of the

community. He next asserts that African-Americans make up a higher

percentage of low-income people in Lee County. Taking these premises together,

Lilly infers that African-Americans register to vote and get driver’s licenses and

nonoperator identification cards at lower rates than other races. African-

Americans are, following this logic, underrepresented in the lists from which jury

pools are sourced. From this conclusion, Lilly argues that failing to supplement

the source list with other lists that might include more lower-income people

amounts to “mismanagement” resulting in the systemic exclusion of African-

Americans.

A. Analysis Under the Sixth Amendment. Lilly presents his arguments

both under the Sixth Amendment to the United States Constitution and under

article I, section 10 of the Iowa Constitution. An important distinction exists in

how we analyze claims under the two constitutions. In State v. Veal (Veal I), we

held that for a Sixth Amendment fair-cross-section claim, the defendant “must

identify some practice or combination of practices that led to the

underrepresentation, and it must be something other than the ‘laundry list’ the

Supreme Court declined to condemn in Berghuis.” 930 N.W.2d 319, 330 (Iowa

2019) (quoting Berghuis v. Smith, 559 U.S. 314, 332 (2010)). Challenges to “run-

of-the-mill” jury management practices are thus insufficient to show systematic

exclusion under the Sixth Amendment. Id. at 329. We described run-of-the-mill

jury management practices in Lilly I as “the relatively commonplace” practices 7

that might include, for instance, practices for updating juror address lists,

excusing potential jurors for hardship or other reasons, and enforcing jury

summonses. 930 N.W.2d at 308. These common jury practices fall within a

state’s “broad discretion,” according to the Supreme Court in Berghuis, and will

not sustain a Sixth Amendment cross-section challenge. 559 U.S. at 333

(quoting Taylor v. Louisiana, 419 U.S. 522, 537–38 (1975)).

The practice of using the state’s own voter registration list, motor vehicle

operator list, and nonoperator identification list to construct a source list from

which to draw jury pools amounts to a commonplace, run-of-the-mill practice.

Courts in jurisdictions around the country have upheld the use of voter

registrations lists (without the addition of another list) as a jury-pool source. See

United States v. Orange, 447 F.3d 792, 800 (10th Cir. 2006) (“The circuits are ‘in

complete agreement that neither the Act nor the Constitution require that a

supplemental source of names be added to voter lists simply because an

identifiable group votes in a proportion lower than the rest of the population.’ ”

(quoting United States v. Test, 550 F.2d 577, 586 n.8 (10th Cir. 1976))); United

States v. Sanchez, 156 F.3d 875, 879 (8th Cir. 1998) (“We have consistently

upheld the use of voter registration lists to select jury pools.”). Lilly acknowledges

that “[i]t has been the practice for district courts to solely use the lists

provided”—the very lists he challenges in this case—to create jury pools. These

lists are the only ones that the Iowa Code requires courts to use in drawing jury

pools. Iowa Code § 607A.22(1) (2017). The challenged practice alleged to have

caused the underrepresentation under the third prong “must be something other 8

than” the run-of-the-mill practices that the Supreme Court has declined to

condemn. Veal, 930 N.W.2d at 330 (citing Berghuis, 559 U.S. at 332). Use of the

source list to draw jury pools is, perhaps, as garden-variety a practice as one

could find. Because he challenges a run-of-the-mill practice, and no other

practices, Lilly cannot show a violation under the Sixth Amendment.

B. Analysis Under the Iowa Constitution. Lilly’s claim under article I,

section 10 of the Iowa Constitution requires a different analysis. In Lilly I, we

held that run-of-the-mill jury management practices can support a systemic

exclusion claim under the Iowa Constitution. 930 N.W.2d at 308. We thus will

analyze Lilly’s argument based on source list deficiencies under the Iowa

Constitution’s separate, unconstrained analysis.

But Lilly still must prove that the challenged practice caused the

systematic exclusion of the group in the jury-selection process. Id. at 307–08.

And here Lilly’s claim falters in multiple ways. As an initial matter, Lilly attempts

to apply deductive reasoning showing causation by constructing a syllogism that,

in simple form, goes as follows:

Low-income residents are underrepresented on the source list;

African-Americans are more likely to be low-income residents;

Therefore, African-Americans are underrepresented on the source list.

But Lilly doesn’t prove the key premise. He asserts that low-income people

register to vote and acquire driver’s licenses and nonoperator identification cards

at lower rates than others in the community, but he offers no evidence to

establish this fact. The proposition is supported by supposition, not proof. “Mere 9

speculation about the possible causes of underrepresentation will not substitute

for a credible showing of evidence supporting those allegations.” Lilly I,

930 N.W.2d at 307 (quoting Paula Hannaford-Agor, Systematic Negligence in

Jury Operations, 59 Drake L. Rev. 761, 790 (2011)) [hereinafter Hannaford-Agor].

Lilly presented no testimony about the demographic make-up of the people

included on the source list. He offered no evidence that low-income people

actually register to vote or get driver’s licenses or nonoperator identification

cards at lower rates than others. And he offered no evidence that African

Americans in particular register to vote or get driver’s licenses or identification

cards at lower rates than others. The amicus curiae, the NAACP, attempts to fill

this void in part by attaching an email from a former Iowa Department of

Transportation director as an exhibit to its appeal brief, but that email was never

offered or entered in the district court and is beyond the record for our

consideration on appeal. Iowa R. App. P. 6.801.

Even if Lilly had introduced evidence on that particular point, proof of

actual causation in the record nonetheless remains absent. In Lilly I, we said

that a defendant’s proof of causation will “almost always require expert

testimony” to (1) identify “the precise point of the juror summoning and

qualification process in which members of distinctive groups were excluded from

the jury pool” and (2) offer “a plausible explanation of how the operation of the

jury system resulted in their exclusion.” Lilly I, 930 N.W.2d at 307 (quoting

Hannaford-Agor, 59 Drake L. Rev. at 790–91). Lilly called no expert witness

whatsoever, let alone one that pinpointed the procedural step in which African- 10

Americans were excluded and offered a plausible explanation for how the

summoning and qualification process brought it about. He has failed to show

(even assuming his supporting premises had been established in the record) that

using the existing source list to generate jury pools resulted in the alleged

underrepresentation. On this point, the record scarcely provides evidence of

correlation, never mind causation.

As a fallback, Lilly argues that requiring the defendant to establish

causation under the third prong of the Duren/Plain analysis assigns the burden

to the wrong party. He urges instead that once the defendant shows that a

distinctive group has been underrepresented in jury pools under the second

prong, the burden should shift to the State to show affirmatively that the group

has not been systematically excluded. But in Lilly I we analyzed the amicus’s

argument on burden shifting and explained at some length why the burden to

prove causation appropriately resides with the defendant. Id. at 305–06. In Lilly’s

initial appeal, we expressly assigned the burden of proof on these issues to Lilly,

stating that “the defendant must prove that the practice has caused systematic

underrepresentation.” Id. at 307–08 (emphasis added). He has not met his

burden.

Because Lilly failed to deliver on his burden under the third prong, which

on its own is sufficient to affirm the district court’s denial of his claim, we need

not take up his arguments relating to the second prong’s requirement to

establish actual underrepresentation of African-Americans in his jury pool. 11

IV. Conclusion.

In Lilly I, we conditionally affirmed Lilly’s conviction and remanded for a

determination on his fair-cross-section challenge. We now affirm the district

court’s holding on remand that Lilly failed to prove a violation of his right to an

impartial jury, and we affirm his conviction.

AFFIRMED.

All justices concur. Mansfield, J., files a concurrence, in which Appel, J.,

joins. McDonald, J., files a concurrence, in which Christensen, C.J., and

Waterman, J., join. 12

#20–0617, State v. Lilly

MANSFIELD, Justice (concurring).

I join the majority opinion. I write briefly to respond to the suggestion of

those who partially dissented in State v. Lilly (Lilly I), 930 N.W.2d 293 (Iowa

2019), that after one remand, it is time to overrule Lilly I and abandon the effort.1

The Iowa Constitution guarantees defendants the right to have their jury

drawn from a fair cross-section of the community. Many African-American

defendants in Iowa are tried by juries that contain no African-American jurors.

In a given case, that may be the result of a constitutional violation; it may not.

In Lilly I, our court took two, common-sense steps to add rigor to the

constitutional analysis.2

First, instead of examining numbers that have no statistical validity

whatsoever, like the absolute disparity between the percentage of African-

Americans in the jury pool and the percentage in the overall population, we

focused the analysis on the only measure that has statistical validity: whether

there is an underrepresentation of African-Americans in the jury pool that is

unlikely to be due to chance. Lilly I, 930 N.W.2d at 302. We also explained that

to make the analysis more sound, the baseline should “reflect the population

that would actually be eligible for jury service.” Id. at 304–05.

1See the concurrence that immediately follows this opinion. 2Obviously, the Lilly decision applies to any distinctive group, not just African-Americans. But the scenario that has drawn the most attention is the African-American defendant whose jury contains no African-American members. Lilly presents exactly this situation. 13

Second, we required the defendant to prove, again using proper methods

of proof, that a specific practice was causing the systematic underrepresentation

of a distinctive group. Id. at 308. This was a middle position between those who

argued that the State should have the burden of justifying its jury selection

practices whenever the defendant proved underrepresentation and those who

argued current practices should be held per se constitutional. See id. at 307. It’s

a logical line to draw. If a practice leads to systematic exclusion of African-

Americans from jury pools, who cares what that practice is? The important thing

is that it is exclusionary. As we put it in Lilly I, “If a practice that leads to

systematic underrepresentation of a distinctive group in jury pools can be

identified and corrected, there is no reason to shield that practice from scrutiny

just because it is relatively commonplace.” Id. at 307–08.

Our recent caselaw has led to several helpful developments. Attorneys on

both sides are assembling more accurate data about the jury-eligible populations

in specific counties. Those same attorneys are using statistical analyses instead

of the old-fashioned, discredited, correlation-means-causation kinds of

arguments. (Doing the statistics is not that difficult.) No longer do we get to rely

only on our own assumptions. Instead, our caselaw has put the spotlight on

specific practices and enabled us to learn whether, in fact, they lead to

systematic underrepresentation of distinctive groups. None of these things would

have happened without Lilly I and related cases, at least not to the same degree.

Here, the defendant has been unable to establish a constitutional

violation. That does not mean we were wrong in Lilly I. 14

In today’s concurrence, the Lilly I partial dissenters claim the mantle of

precedent. They assert that we decided categorically forty-six years ago that

using voter registration lists to summon jurors did not violate the Iowa

Constitution. See State v. Williams, 243 N.W.2d 658, 662 (Iowa 1976). Actually

no. What we said in Williams was:

Absent a showing of systematic discrimination, other courts have consistently turned back constitutional assaults on the use of voter registration lists as the sole source of names for jury duty.

Defendant had the burden of establishing a prima facie case that the Bank Hawk County selection procedure systematically excluded a particular group. Trial court properly ruled the record made here failed to meet that test.

Id. (citations omitted) (emphases added). In other words, we held on that record

that the use of voter registration lists didn’t violate the Iowa Constitution. The

Lilly I majority is consistent with that holding; the Lilly I partial dissent is not.

In the present appeal, the NAACP, as amicus, asks us again to eliminate

the defendant’s burden of proof on systematic exclusion, shifting the burden to

the State to prove why it cannot “mak[e] the necessary reforms” to secure a jury

pool that represents a fair cross-section: once the defendant proves

underrepresentation. The NAACP raised a similar argument as amicus in Lilly I,

and a majority of this court rejected it. Lilly I, 930 N.W.2d at 305–07 (“[A]t this

time, we are not prepared to embrace the NAACP’s proposal.”). Thus, the NAACP

wants us to depart from the law of the case. That is something we don’t ordinarily

do, and I would not favor doing it today. 15

However, we also said in Lilly I, “We may be willing to impose such an

obligation in the future when we have more data about what [known best

practices] are and their effectiveness.” Id. at 307.

For the foregoing reasons, I concur in the majority opinion and also submit

this concurrence.

Appel, J., joins this concurring opinion. 16

McDONALD, Justice (concurring).

I agree with the majority that Lilly failed to provide any evidence in support

of his fair-cross-section claims arising under the federal and state constitutions

and that Lilly is not entitled to any relief, and I join the court’s opinion. The law

concerning fair cross-sections applied in the majority opinion is the law of the

case with respect to Lilly’s claims, but I would revisit this area of law in the

appropriate case. The court’s recent fair-cross-section jurisprudence under the

Iowa Constitution is undermining the administration of justice, rendering it

incredibly difficult simply to have a jury trial without months of discovery,

expensive motion practice, expensive expert witness testimony, and days of

hearings. And to what end? None that have been evidenced to date.

The practices being challenged in this court’s most recent fair-cross-

section cases are standard practices used for decades all over the country. Forty-

six years ago, this court rejected the same challenge raised in this case. See State

v. Williams, 243 N.W.2d 658, 662 (Iowa 1976). Rather than continuing to

adjudicate these same issues for the next half-century, I would hold, in the

appropriate case, that run-of-the-mill jury management practices cannot

establish a claim of systematic exclusion under the Iowa Constitution. See State

v. Veal, 930 N.W.2d 319, 364–65 (Iowa 2019) (McDonald, J., concurring in part

and dissenting in part) (discussing federal standard); State v. Lilly (Lilly I), 930

N.W.2d 293, 318 (Iowa 2019) (McDonald, J., concurring in part and dissenting 17

in part) (collecting cases); State v. Williams, 929 N.W.2d 621, 645 (Iowa 2019)

(McDonald, J., concurring in part and dissenting in part).

Christensen, C.J., and Waterman, J., join this concurring opinion.